in the united states court of appeals for the …...no. 18-2488 in the united states court of...

No. 18-2488

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISTRICT OF COLUMBIA; STATE OF MARYLAND,

Plaintiffs-Appellees,

v.

DONALD J. TRUMP, President of the United States of America, in his official capacity and his individual capacity,

Defendant-Appellant.

On Appeal from the United States District Court

for the District of Maryland Case No. 8:17-cv-01596 Judge Peter J. Messitte

APPELLANT’S REPLY BRIEF

Patrick Strawbridge CONSOVOY MCCARTHY PARK PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 [email protected]

William S. Consovoy Thomas R. McCarthy Bryan K. Weir Cameron T. Norris CONSOVOY MCCARTHY PARK PLLC 3033 Wilson Blvd., Suite 700 Arlington, VA 22201 (703) 243-9423 [email protected] [email protected] [email protected] [email protected]

Counsel for Defendant-Appellant in his individual capacity

USCA4 Appeal: 18-2488 Doc: 42 Filed: 02/21/2019 Pg: 1 of 35

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TABLE OF CONTENTS

INTRODUCTION ................................................................................................................1

ARGUMENT ..........................................................................................................................1

I. The Court’s Appellate Jurisdiction Is Not Confined To Absolute Immunity. ....1

II. The President Is Entitled To Dismissal. ...................................................................5

A. Plaintiffs lack Article III standing. .................................................................5

B. The President has absolute immunity. ........................................................ 17

C. Plaintiffs lack a cause of action. ................................................................... 21

D. Plaintiffs fail to state a claim under the Emoluments Clauses. ................ 23

CONCLUSION ................................................................................................................... 25

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES

Adams v. Watson, 10 F.3d 915 (1st Cir. 1993) ............................................................................................ 12

Alfred L. Snapp & Son, Inc. v. P.R. ex rel. Barez, 458 U.S. 592 (1982) ........................................................................................................ 16

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) .......................................................................................................... 11

Am. Soc. of Travel Agents, Inc. v. Blumenthal, 566 F.2d 145 (D.C. Cir. 1977) ........................................................................... 11, 12, 13

Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002) ....................................................................................... 3, 4

Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) .................................................................................................... 21

Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017) ....................................................................................... 6, 7

Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986) ...........................................................................................................2

Cannon v. Vill. of Bald Head Island, 891 F.3d 489 (4th Cir. 2018) ............................................................................................4

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ...........................................................................................................8

Clinton v. Jones, 520 U.S. 681 (1997) .................................................................................................. 20, 21

DEK Energy Co. v. FERC, 248 F.3d 1192 (D.C. Cir. 2001) ............................................................................... 11, 14

Del. Dep’t of Nat. Res. & Envtl. Control v. FERC, 558 F.3d 575 (D.C. Cir. 2009) ................................................................................. 6, 7, 8

DeLong v. IRS, 1990 WL 101402 (4th Cir. July 10, 1990) .................................................................... 22


iii

Diamond v. Charles, 476 U.S. 54 (1986) .......................................................................................................... 10

Donohoe v. Duling, 465 F.2d 196 (4th Cir. 1972) ............................................................................................7

Dugan v. Rank, 372 U.S. 609 (1963) ........................................................................................................ 21

E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1239 (9th Cir. 2018) ................................................................................4

Evenwel v. Abbott, 136 S. Ct. 1120 (2016) .................................................................................................... 24

Ex Parte Levitt, 302 U.S. 633 (1937) ........................................................................................................ 10

Ex Parte Young, 209 U.S. 123 (1908) ........................................................................................................ 21

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) ......................................................................................... 21

Finkelman v. NFL, 810 F.3d 187 (3d Cir. 2016) ........................................................................................... 11

Georgia v. Penn. R. Co., 324 U.S. 439 (1945) ........................................................................................................ 16

Griffin v. Dep’t of Labor Fed. Credit Union, 912 F.3d 649 (4th Cir. 2019) ............................................................................................8

Griswold v. Coventry First LLC, 762 F.3d 264 (3d Cir. 2014) ..............................................................................................4

Hafer v. Melo, 502 U.S. 21 (1991) .......................................................................................................... 22

Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977) ..........................................................................................7

Kaplan v. Central Bank of Iran, 896 F.3d 501 (D.C. Cir. 2018) ..........................................................................................3


iv

KERM, Inc. v. FCC, 353 F.3d 57 (D.C. Cir. 2004) ......................................................................................... 14

King v. Myers, 973 F.2d 354 (4th Cir. 1992) ............................................................................................2

Kumar v. George Washington Univ., 174 F. Supp. 3d 172 (D.D.C. 2016) .................................................................................1

Laird v. Tatum, 408 U.S. 1 (1972) ...............................................................................................................7

Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004) ..............................................................................................6

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ........................................................................................................ 21

Lewis v. New Mexico Dept. of Health, 261 F.3d 970 (10th Cir. 2001) ..........................................................................................4

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................................... 9, 10

Massachusetts v. EPA, 549 U.S. 497 (2007) ...........................................................................................................6

Merritt v. Shuttle, Inc., 187 F.3d 263 (2d Cir. 1999) ..............................................................................................2

Mistretta v. United States, 488 U.S. 361 (1989) ........................................................................................................ 24

New World Radio, Inc. v. FCC, 294 F.3d 164 (D.C. Cir. 2002) ................................................................................. 11, 12

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ........................................................................................ 5, 17, 18, 19

NLRB v. Noel Canning, 573 U.S. 513 (2014) ........................................................................................................ 23

Pennsylvania v. New Jersey, 426 U.S. 660 (1976) .................................................................................................... 7, 17


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Philadelphia Taxi Ass’n, Inc v. Uber Techs., Inc., 886 F.3d 332 (3d Cir. 2018) ........................................................................................... 13

Pollack v. Hogan, 703 F.3d 117 (D.C. Cir. 2012) ....................................................................................... 21

Price v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996) ......................................................................................... 11

Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013) ......................................................................................... 22

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) ........................................................................................................ 10

Screws v. United States, 325 U.S. 91 (1945) .......................................................................................................... 22

Sherley v. Sebelius, 610 F.3d 69 (D.C. Cir. 2010) ................................................................................... 12, 14

Smith v. Arthur Andersen LLP, 421 F.3d 989 (9th Cir 2005) ........................................................................................ 3, 6

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .................................................................................................. 7, 9

State Nat. Bank of Big Spring v. Lew, 795 F.3d 48 (D.C. Cir. 2015) ......................................................................................... 14

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) .............................................................................................................2

Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999) ........................................................................................4

Taylor v. Waters, 81 F.3d 429 (4th Cir. 1996) ..............................................................................................2

The Pocket Veto Case, 279 U.S. 655 (1929) ........................................................................................................ 24

Timpanogos Tribe v. Conway, 286 F.3d 1195 (10th Cir. 2002) ........................................................................................3


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Town of Greece v. Galloway, 572 U.S. 565 (2014) ........................................................................................................ 24

Triad Associates, Inc. v. Robinson, 10 F.3d 492 (7th Cir. 1993) ..............................................................................................4

United Presbyterian Church v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) ........................................................................................8

United States v. Richardson, 418 U.S. 166 (1974) ........................................................................................................ 10

United Transp. Union v. ICC, 891 F.2d 908 (D.C. Cir. 1989) ................................................................................. 11, 13

Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) ........................................................................................................ 10

Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635 (2002) ........................................................................................................ 21

Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765 (2000) ...........................................................................................................3

Williams v. Hansen, 326 F.3d 569 (4th Cir. 2003) ............................................................................................3

Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220 (10th Cir. 2012) ........................................................................................6


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INTRODUCTION

The briefing in this case, as well as the related mandamus petition, demonstrates

that this Court can, should, and must (with respect to Article III standing) reach issues

other than absolute immunity. Indeed, Plaintiffs’ briefing only confirms the importance

of conclusively resolving the important legal issues raised by this appeal. That is because

it is now clear that each of the President’s arguments, including absolute immunity,

provides a compelling basis for dismissing the complaint with prejudice. The President

respectfully asks the Court to grant that relief.

ARGUMENT

I. The Court’s Appellate Jurisdiction Is Not Confined To Absolute Immunity.

This Court has appellate jurisdiction to decide whether Plaintiffs have Article III

standing, a cause of action against the President in his individual capacity, and a claim

under the Emoluments Clauses. Defendant-Appellant’s Brief (“Br.”) 10-12. Plaintiffs’

contrary arguments all miss the mark.

As for standing, the Court not only may reach the issue; it must—and it must do

so before reaching the other issues. Br. 10-11. Plaintiffs counter (at 15) that “the Court

must invoke its pendent appellate jurisdiction” to reach the Article III issue, “and it has

declined to do so in analogous circumstances.” That is not so. Absolute immunity is a

“a defense on the merits, not a limit on the Court’s jurisdiction.” Kumar v. George

Washington Univ., 174 F. Supp. 3d 172, 176 n.1 (D.D.C. 2016). It defeats “liability.” King

v. Myers, 973 F.2d 354, 356 (4th Cir. 1992).


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Hence, there is nothing “pendent” about deciding subject-matter jurisdiction

before reaching absolute immunity. “‘On every … appeal, the first and fundamental

question is that of jurisdiction, first, of this court, and then of the court from which the

record comes.’” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998).

“[E]very federal appellate court has a special obligation to satisfy itself not only of its

own jurisdiction, but also that of the lower courts.” Id. at 95 (cleaned up). A “defect in

original jurisdiction would be dispositive here because, if the district court lacked

jurisdiction,” this Court “would have ‘jurisdiction on appeal, not of the merits but

merely for the purpose of correcting the error of the lower court in entertaining the

suit.’” Merritt v. Shuttle, Inc., 187 F.3d 263, 268 (2d Cir. 1999) (quoting Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)).

But the obligation to decide Article III standing fits comfortably within pendent

appellate jurisdiction even assuming that doctrine applies. Br. 11. The Court may decide

an issue beyond the one supplying appellate jurisdiction if it is “inextricably intertwined

with the decision of the lower court” or “necessary to ensure meaningful review.” Taylor

v. Waters, 81 F.3d 429, 437 (4th Cir. 1996). Deciding Article III standing first does not

exceed “the boundaries of [pendent] appellate jurisdiction”; rather, it “is ‘necessary to

ensure meaningful review of the district court’s order’” because “existence of subject

matter jurisdiction goes to the very power of the district court to issue the rulings now

under consideration.” Merritt, 187 F.3d at 268-69; accord Vt. Agency of Natural Res. v. U.S.

ex rel. Stevens, 529 U.S. 765, 770-71 & n.2 (2000); Smith v. Arthur Andersen LLP, 421 F.3d


3

989, 997-98 (9th Cir 2005); Timpanogos Tribe v. Conway, 286 F.3d 1195, 1200-01 (10th

Cir. 2002).

Williams v. Hansen, 326 F.3d 569 (4th Cir. 2003), follows that rule. Br. 11. The

basis for appellate jurisdiction in Williams was the denial of qualified immunity. 326 F.3d

at 574. But before reaching that issue, the Court examined whether the plaintiffs were

without “standing to pursues [their] claims,” found the defendant’s “arguments to be

without merit, and rejected them summarily.” Id. at 574 n.4. Plaintiffs (at 15 n.5)

incorrectly characterize this as “dicta.” The Court held that it had “pendent appellate

jurisdiction” to first decide Article III standing because it “would be obligated to take

notice if plaintiffs lacked standing as the absence of standing would be a jurisdictional

defect.” Id. Williams is controlling precedent.

Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002), is not to the contrary. There,

appellate jurisdiction was itself supplied by a jurisdictional dispute—namely, whether the

Eleventh Amendment barred the suit. Id. at 184. The defendants sought to raise “other

jurisdictional questions,” including standing. Id. at 191. But since Eleventh Amendment

immunity was the basis for appeal, the Court decided it first. Id. at 184-91. That is

because “nothing in Steel Co. establishes an order of priority as between alternative

jurisdictional grounds for disposing of a case.” Kaplan v. Central Bank of Iran, 896 F.3d

501, 514 (D.C. Cir. 2018). Having disposed of the issue generating the appeal, the Court

“declined to consider the other jurisdictional questions raised by the defendants at this

stage of the proceeding.” Antrican, 290 F.3d at 191. Unlike Eleventh Amendment


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immunity, however, absolute immunity is not jurisdictional. Supra 1. Article III standing,

consequently, must be addressed first.1

The Court likewise can decide the merits because, contrary to Plaintiffs’

argument (at 16-18), they are intertwined with absolute immunity. Br. 11-12. Plaintiffs

argue that the President’s claim of absolute immunity fails because this is an equitable

action that does not seek damages. But whether that argument can even be heard

depends, in the first place, on whether they may bring an equitable action against the

President in his individual capacity. Thus, contrary to Plaintiffs’ suggestion (at 16), the

question whether they can bring an equitable action does in fact “‘underlie both’” the

immunity and non-immunity issues. Cannon v. Vill. of Bald Head Island, 891 F.3d 489,

507 (4th Cir. 2018). The Court has the discretion to decide whether Plaintiffs have a

cause of action.2

The Court equally has discretion to decide whether Plaintiffs state a claim under

the Emoluments Clauses. As Plaintiffs recognize (at 16, 11), the President’s absolute-

immunity defense requires the Court to examine whether Plaintiffs “challenge the types

1 Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999), and Lewis

v. New Mexico Dept. of Health, 261 F.3d 970 (10th Cir. 2001), were Eleventh Amendment appeals and are thus distinguishable for the same reason. Griswold v. Coventry First LLC, 762 F.3d 264 (3d Cir. 2014), and Triad Associates, Inc. v. Robinson, 10 F.3d 492 (7th Cir. 1993), are incorrect. Any case reaching a non-jurisdictional issue before Article III standing conflicts with Supreme Court and Fourth Circuit precedent.

2 The Court also has appellate jurisdiction to decide the zone-of-interest issue. E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1239 (9th Cir. 2018).


5

of acts” that are “protected by absolute immunity” and whether allowing the litigation

to proceed will interfere with the President’s “ability to carry out [his] official duties.”

But these questions cannot be answered without knowing the scope of the Emoluments

Clauses and what they require of the President. That determination will, in turn, bear

directly on the extent to which this case interferes with “the effective functioning of

government.” Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982). Even under Plaintiffs’ view,

then, the immunity and merits claims are intertwined.

Last, Plaintiffs argue (at 16-17) that the President would have briefed the merits

below if he believed “these grounds for dismissal were truly ‘inextricably intertwined’

with [his] immunity defense.” This argument is unserious. The President extensively

briefed the cause-of-action issue. Doc. 112 at 23-30. As Plaintiffs know, the President

did not brief Article III standing because the district court had already decided the issue,

and he did not brief the merits because the Department of Justice had comprehensively

done so. Id. at 7 & n.1. Of course, it did not end up mattering. The President’s motion

to dismiss was never heard.

II. The President Is Entitled To Dismissal.

A. Plaintiffs lack Article III standing. Plaintiffs do not address the President’s challenges to their standing; they merely

“incorporate … by reference” (at 19-20) the arguments from their opposition to the

Government’s mandamus petition. But those arguments focus on the higher standard

for mandamus. Plaintiffs’ Mandamus Opp. (“Opp.”) 38-41, 44, 46, 50. No such


6

standard applies here. In this appeal, the Court must assess Plaintiffs’ standing de novo.

E.g., Smith, 421 F.3d at 998; Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d

365, 372-73 (2d Cir. 2004). And because the President raises a “factual challenge” to

Plaintiffs’ standing, the court can “‘go beyond the allegations of the complaint’” and

should “‘not apply” the “‘presumption of truthfulness.’” Beck v. McDonald, 848 F.3d

262, 270 (4th Cir. 2017).

On de novo review, Plaintiffs plainly lack standing. While States are sometimes

“‘entitled to special solicitude in [the] standing analysis,’ [t]his special solicitude does not

eliminate the[ir] obligation to establish a concrete injury.” Del. Dep’t of Nat. Res. & Envtl.

Control v. FERC, 558 F.3d 575, 579 n.6 (D.C. Cir. 2009) (quoting Massachusetts v. EPA,

549 U.S. 497, 520 (2007)); accord Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220, 1238

(10th Cir. 2012). Plaintiffs have not met that obligation. Their “quasi-sovereign” injuries

are generalized grievances. Their “proprietary” injuries are far too speculative. And their

“parens patriae” injuries are nonexistent, duplicative, and cannot be vindicated in a suit

against the President.

Quasi-Sovereign Injuries: Plaintiffs contend that the President’s alleged

violations of the Emoluments Clauses offend their “quasi-sovereign interests.”

Opp. 41-44. The only quasi-sovereign interest they identify is “avoiding … pressure to

compete with others for the President’s favor.” Opp. 43. Plaintiffs sum up their novel

theory with this confusing sentence: “The operative question is not whether plaintiffs

have incurred a cost, but whether the President unconstitutionally puts them in a


7

position to incur that cost in the first place.” Opp. 43. Whatever that is supposed to

mean, Plaintiffs’ alleged “pressure” is clearly not a “‘concrete and particularized’” injury.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016).

Plaintiffs’ “pressure” injury is not concrete. A plaintiff’s “subjective” feelings of

pressure or chill are “not an adequate substitute for a claim of specific present objective

harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972). While

Plaintiffs might “feel that” their “overall effectiveness has been impaired,” “[s]uch

feelings of injury are subjective in nature”; Article III requires “the alleged harm [to] be

‘specific ... and objective.’” Harrington v. Bush, 553 F.2d 190, 213 (D.C. Cir. 1977); accord

Beck, 848 F.3d at 272; Donohoe v. Duling, 465 F.2d 196, 199-02 (4th Cir. 1972). Plaintiffs’

alleged harm is not.

If Plaintiffs feel pressure to grant the President special favors, that pressure is

subjective because Plaintiffs have a foolproof way to avoid injury—do not grant the

President any special favors. If Plaintiffs’ nevertheless choose to grant favors, their injury

would be “self-inflicted” and “[n]o State can be heard to complain about damage

inflicted by its own hand.” Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976). The D.C.

Circuit’s decision in Delaware Department of Natural Resources is on point. There, Delaware

challenged the federal government’s approval of a natural-gas project. 558 F.3d at 577.

Although the project could not go forward unless Delaware also approved it, Delaware

claimed it was injured because the federal government’s approval created “intense

political pressure” for Delaware to sign off as well. Id. at 578. The D.C. Circuit refused


8

to “recognize this conjectural political dynamic as representing a concrete injury or,

indeed, any sort of legally-cognizable injury.” Id. It remained Delaware’s “own …

decision” to approve or disapprove the project, and its interest in “avoid[ing]”

“pressure” was not a concrete injury that could support standing. Id. So too here.

If Plaintiffs instead fear that the President might take some adverse action against

them or not award them some benefit, that pressure is likewise subjective because the

prospect of that happening is remote, unrealistic, and speculative. See United Presbyterian

Church v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir. 1984) (Scalia, J.) (rejecting standing

because plaintiffs “have not adequately averred that any specific action is threatened or

even contemplated against them”). A plaintiff cannot prove standing “‘merely from [its]

knowledge that a governmental agency was engaged in certain activities or from [its]

concomitant fear that, armed with the fruits of those activities, the agency might in the

future take some other and additional action detrimental to [it].’” Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 418 (2013) (quoting Laird, 408 U.S. at 11). Article III requires an

injury to “be ‘certainly impending’ to serve as the basis for … injunctive relief.” Griffin

v. Dep’t of Labor Fed. Credit Union, 912 F.3d 649, 655 (4th Cir. 2019).

Here, Plaintiffs concede they have never “even been asked” to grant the

President special concessions, and they deny he will imminently “retaliate[] against

[them] in some way.” Opp. 42-43. Nor do they dispute that the President would never

retaliate against local officials for not staying at his five-star hotel. Br. 15. Even less

plausible is the notion that Plaintiffs would receive less “federal funding” (which is


9

largely up to Congress) or receive unfair treatment from “federal executive agencies”

(which are run by officials with zero stake in the Hotel). Opp. 43-44. Even if these wild

scenarios were possible, Article III is “stretched beyond the breaking point when, as

here, the plaintiff alleges only an injury at some indefinite future time.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 564 n.2 (1992).

Even it were concrete, Plaintiffs’ “pressure” injury is not particularized. Plaintiffs

admit that their injury occurs “whenever the President accepts forbidden payments.”

Opp. 43 (emphasis added). They concede that their theory of standing would

automatically give “governments” standing to sue for every Emoluments Clause

violation—state, local, and federal, “not restricted to those governments from whom

the President solicits favors.” Opp. 43. And there is no logical reason why their theory

would not automatically give all individuals standing to sue as well. After all, individuals,

associations, and businesses also “interact with the federal government” in “concrete

ways” and “compete with others for the President’s favor.” Opp. 43. Yet an injury that

Plaintiffs share with every citizen in the country (or even every government) is not the

kind of “‘distinct,’” “‘personal,’” and “not ‘undifferentiated’” harm that Article III

requires. Spokeo, 136 S. Ct. at 1548.

Plaintiffs’ “pressure” injury is a prototypical generalized grievance; everyone has

it, anyone can vindicate it, and it stems from the mere fact that the Emoluments Clauses

were violated. The Supreme Court has “consistently held” that a plaintiff “claiming only

harm to his and every citizen’s interest in proper application of the Constitution … and


10

seeking relief that no more directly and tangibly benefits him than it does the public at

large” lacks Article III standing. Lujan, 504 U.S. at 573-74. For example, in Ex parte

Levitt, the Court dismissed a challenge to Justice Black’s compliance with Article I’s

Ineligibility Clause, which prohibits Senators from being appointed to an office if they

previously increased its “Emoluments.” Although the plaintiff in Levitt was “a citizen

and a member of the bar of [the Supreme] Court,” his only injury was “a general interest

common to all members of the public.” 302 U.S. 633, 636 (1937); accord Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208, 220-27 (1974); United States v. Richardson,

418 U.S. 166, 177-80 (1974). This case is no different. While Plaintiffs’ “pressure” injury

is “cloaked in the nomenclature” of a personal right, Diamond v. Charles, 476 U.S. 54, 66

(1986), it is really just “a right to a particular kind of Government conduct, which the

Government has violated by acting differently.” Valley Forge Christian Coll. v. Americans

United for Separation of Church & State, Inc., 454 U.S. 464, 483 (1982). If the Court allows

that kind of injury to satisfy Article III’s strictures, it will “drain[] those requirements of

meaning.” Id.

Proprietary Injuries: Plaintiffs also assert “proprietary” injuries from the

President’s alleged violations of the Emoluments Clauses, relying heavily on the

“competitor standing” line of cases. See Opp. 46-50. Importantly, the competitor cases

are an application of Article III’s standing requirements, not an exception to them. They

do not stand for the “remarkable proposition” that “a market participant is injured for

Article III purposes whenever a competitor benefits from something allegedly


11

unlawful.” Already, LLC v. Nike, Inc., 568 U.S. 85, 99 (2013). They simply recognize that

courts can credit “allegations of future injury that are firmly rooted in the basic laws of

economics.” United Transp. Union v. ICC, 891 F.2d 908, 912-13 n.7 (D.C. Cir. 1989).

Meanwhile, courts routinely reject allegations that are not so rooted, that rely on

“speculation,” or that depend on an overly long “chain of causation.” New World Radio,

Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir. 2002); Am. Soc. of Travel Agents, Inc. v. Blumenthal,

566 F.2d 145, 150-51 & n.5 (D.C. Cir. 1977). Plaintiffs’ allegations fall into this camp,

for at least three reasons.

First, Plaintiffs’ cannot disentangle the legitimate reasons officials might stay at

the Hotel from the allegedly illegitimate ones. Plaintiffs cannot prove standing unless

officials choose the Hotel over Plaintiffs’ venues because of the President’s alleged

violations of the Emoluments Clauses—i.e., because the President receives some of the

profits. Price v. City of Charlotte, 93 F.3d 1241, 1248 (4th Cir. 1996). While Plaintiffs insist

that they only need to prove that the profits are “one … reason” why officials choose

the Hotel, Opp. 48, Plaintiffs are wrong (which is why they cite nothing). Article III

generally, and competitor standing specifically, require a tighter causal relationship. See

Finkelman v. NFL, 810 F.3d 187, 198 (3d Cir. 2016) (“[Article III] requires, at a

minimum, that the defendant’s purported misconduct was a ‘but for’ cause of the

plaintiff’s injury.”); DEK Energy Co. v. FERC, 248 F.3d 1192, 1195 (D.C. Cir. 2001)

(“[T]he ‘competitive standing’ doctrine [requires] that … allegedly illegal transactions

… will almost surely cause petitioner to lose business”). If officials “might for a variety


12

of reasons continue to prefer” the Hotel, even after any illegal emoluments to the

President are enjoined, then Plaintiffs lack standing. Travel Agents, 566 F.2d at 150.

Plaintiffs do lack standing, as their own experts attest. The Roginsky declaration

identifies at least a dozen factors that consumers use to choose hotels and event spaces:

“location, facilities, services, amenities, class and image,” “price,” “size and

configuration of space; available dates; proximity to airports; ease of access to the

facility; the reputation of the facility for hosting meetings; and the availability of

experienced suppliers such as audiovisual firms and security.” Doc. 47 ¶ 17. Tellingly,

neither of Plaintiffs’ experts was willing to state that customers are currently choosing

the Hotel over Plaintiffs’ venues—much less that they are choosing the Hotel because

of the opportunity to provide allegedly illegal emoluments to the President, rather than

some combination of the above factors. The experts were unwilling to engage in that

level of speculation, yet that level of speculation is precisely what undergirds Plaintiffs’

theory of standing.

Second, Plaintiffs do not present a “‘garden variety competitor standing case[]’”

that “require[s] a court to simply acknowledge a chain of causation ‘firmly rooted in the

basic law of economics.’” New World, 294 F.3d at 172. Plaintiffs do not invoke “the law

of supply and demand,” Adams v. Watson, 10 F.3d 915, 923 (1st Cir. 1993), or contend

that the Hotel enjoys a “deregulatory” advantage that allows it to charge lower prices,

Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010). Instead, Plaintiffs’ theory turns on

noneconomic decisionmaking by noneconomic actors—namely, government officials. These


13

officials, according to Plaintiffs, stay at the Hotel to “advance their standing in the

President’s eyes” and to “influence” him on “policy decision[s].” Opp. 48. But if that is

their motive, there is no reason to think that ruling for Plaintiffs would cause them to

stay somewhere else. Even if the President could not profit from the Hotel, officials

who wanted to “advance their standing in [his] eyes” would still stay there because it

may financially benefit the Trump family, financially benefit the Trump brand (and thus

the President after he returns to private life), or simply flatter the President. These

noneconomic advantages exist irrespective of any Emoluments Clause violations, and

so Plaintiffs cannot prove that they “undoubtedly [will] face[] no further competition

from [the Hotel]” if they win this case. Travel Agents, 566 F.2d at 151.3

Third, this is not a case where an entire industry sues to block a new form of

competition, and thus it is safe to assume that the new competition will harm at least

one member. See, e.g., Philadelphia Taxi Ass’n, Inc v. Uber Techs., Inc., 886 F.3d 332, 336

(3d Cir. 2018) (association of taxi drivers and 80 individual taxi companies suing to

block Uber). Instead, Plaintiffs’ theory of injury is limited to just two entities and one

strand of competition. The district court held that only the Washington Convention

Center and Bethesda Marriott Conference Center compete with the Hotel, not the

3 Plaintiffs also do not account for individuals who oppose the President and cite

his financial interest in the Hotel as a reason to avoid using that venue. See United Transp., 891 F.2d at 914 (rejecting competitor standing where it was “wholly speculative whether [the challenged conduct] will harm rather than help” the plaintiffs).


14

MGM Casino. JA142 n.13. And it held that these centers compete only with the Hotel’s

event space, not with the hotel itself (the Washington center has no hotel and Maryland

has no interest in the Bethesda center’s hotel) or its restaurant (Plaintiffs’ centers serve

food only in connection with events). JA144-45. Plaintiffs do not contest either holding.

See Sherley, 610 F.3d at 71 (treating the district court’s rejection of certain standing

theories “as conceded” when appellants “ma[d]e no argument to the contrary”).

Accordingly, Plaintiffs must prove that the President’s alleged violations of the

Emoluments Clauses are causing these two centers to lose out on events, and that ending

the violations would cause these two centers to gain the events (rather than the countless

other nearby venues).

When a plaintiff’s theory of competitive injury is so hyper-specific, courts do not

allow it to prove standing by “vaguely assert[ing] only that it competes with [the

defendant] and … serve[s] much of the same audience.” KERM, Inc. v. FCC, 353 F.3d

57, 61 (D.C. Cir. 2004); accord DEK, 248 F.3d at 1194-96; State Nat. Bank of Big Spring v.

Lew, 795 F.3d 48, 55 (D.C. Cir. 2015) (Kavanaugh, J.). Yet that is all Plaintiffs do. The

Roginsky declaration concludes only that the Washington center “competes with the

Trump Hotel to host meetings and special events.” Doc. 47 ¶ 23. And the rest of

Plaintiffs’ evidence does not match their narrow theory of injury. No expert even

analyzed whether the Bethesda center is a competitor with the Hotel. And Plaintiffs’

anecdotes about officials choosing the Hotel for its hotel services (as opposed to its

event services) or choosing the Hotel’s event space over other venues (as opposed to


15

Plaintiffs’ centers), Opp. 48, are irrelevant under their theory. Plaintiffs simply have not

identified a nonspeculative proprietary injury.

Parens Patriae Injuries: Plaintiffs assert that they have “parens patriae”

standing to vindicate the competitive injuries allegedly suffered by all “high-end

restaurants and hotels” in D.C. and southern Maryland. Opp. 44-46. As just explained,

however, those competitive injuries are far too speculative to satisfy Article III.

Plaintiffs do not explain how they can assert parens patriae standing to represent an

interest that is itself too speculative to support Article III standing. Br. 17.

Nor can Plaintiffs bring a parens patriae action against the President. The

Government ably explains why Plaintiffs cannot assert this theory in an official-capacity

suit against the President under the Emoluments Clauses, Gov’t Mandamus Reply

(“Reply”) I.D.1, and Plaintiffs do not dispute that the rules are the same for individual-

capacity suits, Br. 17. Wisely so. When a plaintiff invokes an implied cause of action

and brings an individual-capacity suit against a federal officer for violations of the

Constitution, that suit is still a suit against a federal officer; it has to be, since only

government actors can violate most constitutional provisions. Holly v. Scott, 434 F.3d

287, 291-92 (4th Cir. 2006); infra II.C. The purpose behind the rule barring parens

patriae actions against federal officials, “which reduces most basically to the avoidance


16

of state interference with the exercise of federal powers,” fully applies to individual-

capacity suits. Penn. ex rel. Shapp v. Kleppe, 533 F.2d 668, 678 (D.C. Cir. 1976).4

Last, Plaintiffs cannot bring a parens patriae action to vindicate the commercial

interests of the “high-end restaurants and hotels” that compete with the Hotel. Opp.

46; see Br. 18. That subset of hotels and restaurants is tiny; Plaintiffs’ expert stresses that

“only a small fraction of the total restaurants in the metropolitan area compete with

each other” and that the zone of competition is only a “3-10 mile radius.” Doc. 48 ¶ 19.

There is no way that a small increase in competition to this small subset of businesses

would damage Plaintiffs’ overall economies, or even their restaurant and hospitality

industries. Cf. Georgia v. Penn. R. Co., 324 U.S. 439, 450-51 (1945). But no matter how

many restaurants and hotels Plaintiffs represents, Plaintiffs do not even attempt to

articulate an injury to themselves—only economic injuries to the hotels’ and restaurants’

“bottom lines.” Opp. 46. That is a fatal flaw. See Alfred L. Snapp & Son, Inc. v. P.R. ex

rel. Barez, 458 U.S. 592, 602 (1982) (rejecting the possibility of parens patriae standing

when “a State … attempt[s] to pursue the interests of a private party … only for the

sake of the real party in interest” and thus “is no more than a nominal party”). Even

large parens patriae actions fail when, as here, they represent “nothing more than a

4 The Supreme Court did not find standing based on a parens patriae theory in

Massachusetts v. EPA, so that case cannot help Plaintiffs. See Citizens Against Ruining The Env’t v. EPA, 535 F.3d 670, 676 (7th Cir. 2008); Gov’t of Province of Manitoba v. Zinke, 273 F. Supp. 3d 145, 165-67 (D.D.C. 2017).


17

collectivity of private suits.” Pennsylvania v. New Jersey, 426 U.S. 660, 666 (1976) (rejecting

Pennsylvania’s parens patriae action on behalf of all Pennsylvanians who work in New

Jersey).5

B. The President has absolute immunity.

The President’s absolute immunity follows directly from Nixon v. Fitzgerald and

the lower-court decisions applying it. Br. 20-23. Plaintiffs’ response is confused, self-

contradictory, and misguided.

To begin, Plaintiffs argue (at 7-8) that presidential absolute immunity, like its

common-law counterpart, requires a narrow functional analysis. But they ignore Nixon’s

discussion of “the scope of [the President’s] absolute privilege,” which distinguished

absolute presidential immunity from the absolute immunity extended to other officials.

457 U.S. at 755. While other officials’ immunity “extend[s] only to acts in performance

of particular functions of … office,” the President’s immunity extends further due to

“the special nature of [his] constitutional office and functions.” Id. at 755-56. It reaches

“the ‘outer perimeter of his official responsibility.’” Id. at 756.

Plaintiffs argue that this case is different because they do not seek to hold the

President individually liable for official acts. According to them (at 7, 5, 10), their claims

are for “‘unofficial conduct.” They cannot mean that. Plaintiffs’ official and individual

5 Even if Plaintiffs have Article III standing, their injuries fall outside the

Emoluments Clauses’ zone of interests. Br. 18-20. Plaintiffs’ counterarguments are unpersuasive. Reply I.C.


18

claims both depend on an allegation that the illegality was “under color of law.” Infra

II.C. If Plaintiffs genuinely believe they are challenging private conduct, this case is

over. Plaintiffs have no claim under the Emoluments Clauses unless they are suing the

President for official actions. Br. 22. And even if the receipt of a prohibited emolument

were not itself an official action, it would certainly come within the “outer perimeter”

of the President’s “official responsibility.”

Plaintiffs wisely relent and concede (at 10) that “‘the President’s liability arises

because he became, and remains, the President of the United States.’” But that

concession negates their attempt to distinguish Nixon. To be sure, Plaintiffs’ claims

depend on their allegation (at 9) that “foreign and domestic governments officials” are

“renting rooms and event space at the Hotel and eating at its restaurant.” But their

claims also depend on Mr. Trump holding the Office of President. Indeed, they accuse

him of using that office to violate the Emoluments Clauses, including “allegations that

officials from Bahrain, Maine, Kuwait, and Saudi Arabia stayed or otherwise spent

money at the Hotel ... on the heels of a policy decision.” Opp. 48. Nixon controls when,

as here, individual liability depends upon the defendant being President. But if more is

required, the President’s dealings with foreign and domestic governments clearly fall

within what Plaintiffs identify (at 8-9) as his “‘policy responsibilities’ ... as Commander-

in-Chief.” Nixon, 457 U.S. at 750.

Plaintiffs also try (at 9-10 n.9) to distinguish Nixon because, unlike in that case,

they do not seek damages. But Nixon involved damages because damages are the only


19

relief available in an individual-capacity suit. Br. 23 n.6; infra II.C. Plaintiffs’ insistence

that the unprecedented nature of their individual-capacity equitable suit undermines the

President’s immunity instead of the suit itself is bewildering. Regardless, the idea that

Nixon would have come out differently if the employee had sought equitable relief—

such as backpay or reinstatement—is untenable. Just like damages suits against the

President, “diversion of his energies by concern with private [equitable] lawsuits would

raise unique risks to the effective functioning of government.” Nixon, 457 U.S. at 751.6

“The need to defend” against such “suits would have the serious effect of diverting the

attention of a President from his executive duties since defending a lawsuit today—

even a lawsuit ultimately found to be frivolous—often requires significant expenditures

of time and money, as many former public officials have learned to their sorrow.” Id. at

763 (Burger, C.J., concurring).

Plaintiffs suggest (at 12 n.4) that the President’s wounds are self-inflicted because

he “persists in litigating through a broad-ranging and entirely unnecessary appeal.” But

this litigation proves just the opposite. Plaintiffs added the President in his individual

capacity in a professed effort of “good faith” in order “to facilitate full review of their

claims, both in this Court and in any future appeals.” Doc. 90-1 at 2. The President thus

6 This case is different, Plaintiffs insist (at 11), because the “inquiry into the

President’s actions requires none of the ‘highly intrusive’ examination of motive that concerned the Court in Nixon.” Yet not two pages later, Plaintiffs accuse the President of being “driven by a personal motive not connected with the public good.”


20

had to obtain (and pay for) separate counsel who filed a motion to dismiss. Yet that

motion remained pending for months, even as the Court decided other motions and

discovery commenced. Then, when the President appealed the effective denial of his

immunity, Plaintiffs suddenly concluded that they no longer wished to “facilitate full

review” in an “appeal.” Because this appeal threatened their ability to “move forward

expeditiously,” Plaintiffs purported to dismiss the President without prejudice—keenly

aware that, if successful, they could try to drag him back into the case after discovery

closed or bring a new lawsuit against him. This is the type of harassing and manipulative

litigation that absolute Presidential immunity is designed to prevent. The President has

every right to pursue a preclusive judgment that ensures this does not happen again.

All these dynamics also show why this case is distinguishable from Clinton v. Jones,

520 U.S. 681 (1997). That suit was “unrelated to any of [Clinton’s] official duties as

President of the United States and, indeed, occurred before he was elected to that

office.” Id. at 686. But this suit depends on President Trump’s official duties. That suit

was about “unofficial conduct of the individual who happens to be the President,” id.

at 701, but this suit exists because Mr. Trump is President. President Clinton merely

sought to be relieved of the “burdens of private litigation” and the “likelihood that a

significant number of such cases [would] be filed [was] remote.” Id. at 706, 709. That is

not true here. Finally, subjecting President Clinton to ordinary civil litigation did not

impair “the public interest in enabling” him “to perform [his] designated functions

effectively without fear that a particular decision may give rise to personal liability.” Id.


21

at 693. As the discovery Plaintiffs have already propounded demonstrates, this litigation

is anything but ordinary.

C. Plaintiffs lack a cause of action. Plaintiffs lack any equitable cause of action against the President for violations

of the Emoluments Clause—let alone an equitable action against him in his individual

capacity. Br. 23-34. In response, Plaintiffs abandon any request to expand Bivens to this

setting. Plaintiffs instead argue (at 20-25) that Ex Parte Young, 209 U.S. 123 (1908), and

Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015), authorize “an equitable

cause of action to sue the President in both his official and individual capacity.” That

argument is meritless.

Sovereign immunity does not foreclose equitable actions against state and federal

officers to remedy constitutional violations where appropriate. Id. at 1384. But those

are official-capacity lawsuits. Br. 27-29 (collecting cases). Ex parte Young authorizes an

action against “individual [state officers] in their official capacities.” Verizon Md., Inc. v.

Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). The same goes for federal officers.

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949); Dugan v. Rank, 372 U.S.

609 (1963). Under this “Larson-Dugan exception” to sovereign immunity, e.g., Pollack v.

Hogan, 703 F.3d 117, 120 (D.C. Cir. 2012), suits to enjoin unconstitutional government

action must be brought against federal officers in their official capacities, Feit v. Ward,

886 F.2d 848, 858 (7th Cir. 1989).


22

None of Plaintiffs’ cases (at 22-23) are to the contrary. All of them, indeed every

case that Plaintiffs have ever cited in support of this argument, are official-capacity suits.

If Plaintiffs are suggesting that they are individual-capacity suits because an individual

federal officer was the defendant and equitable relief was awarded, they are deeply

confused. That is true of every successful official-capacity suit against a federal officer

for violating the Constitution.

Nor are Plaintiffs correct (at 23-24) that the Administrative Procedure Act is to

blame for their lack of caselaw support. Plaintiffs lack caselaw support because they

misunderstand the relationship between official- and individual-capacity actions. Both

actions depend on an allegation that the officer acted “under ‘pretense’ of law.” Screws

v. United States, 325 U.S. 91, 111 (1945). Absent an allegation that the officer acted under

“color of law,” there is no official or individual liability. Hafer v. Melo, 502 U.S. 21, 30

(1991); Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 459 n.1 (4th Cir. 2013);

DeLong v. IRS, 1990 WL 101402, at *1 (4th Cir. July 10, 1990). The distinction between

official- and individual-capacity suits is instead solely remedial. Official-capacity suits

effectively enjoin the government (via its officials) from violating the Constitution;

individual-capacity suits provide victims of those officials who personally violate the

Constitution with damages. Br. 27-28. Plaintiffs cannot identify any cases supporting

their position because no such case exists.


23

D. Plaintiffs fail to state a claim under the Emoluments Clauses.

The district court’s reading of the Emoluments Clauses to prohibit “anything

more than de minimis profit, gain, or advantage offered to a public official” by a foreign

or domestic government is incorrect. Br. 34-46. As thoroughly explained, that reading

lacks any foothold in the text, structure, and purpose of the Emoluments Clauses.

Br. 36-43; Pet. 21-22, 26-27; Reply II. Properly interpreted, the Emoluments Clauses

prohibit only the receipt of compensation for services rendered by an officer in either

an official capacity or an employment-type relationship with a foreign or domestic

government. Reply II.A-B. They “do not prohibit officials from engaging in private

business transactions” with government customers. Br. 35. Plaintiffs do not state a

claim under this sensible test, Reply II.C, and none of their contrary arguments (at 25-

40) alters that conclusion.

But even if this were a close case interpretatively, history points decisively toward

the President. When a longstanding practice suddenly comes under constitutional attack

centuries after ratification, the Supreme Court places “significant weight upon historical

practice.” NLRB v. Noel Canning, 573 U.S. 513, 524 (2014). That is, “the longstanding

practice of the government can”—and should—“inform [the Court’s] determination of

what the law is.” Id. at 525 (cleaned up). “Any test the Court adopts,” therefore, “must

acknowledge a practice that was accepted by the Framers and has withstood the critical

scrutiny of time and political change.” Town of Greece v. Galloway, 572 U.S. 565, 577


24

(2014); see Evenwel v. Abbott, 136 S. Ct. 1120, 1132-33 (2016); Mistretta v. United States,

488 U.S. 361, 401 (1989); The Pocket Veto Case, 279 U.S. 655, 689 (1929).

The district court ignored the Supreme Court’s guidance by adopting a test that

cannot be reconciled with historical practice. Br. 43-46; Reply II.A-B. It cannot be

reconciled with the Founding-era practices, including those of George Washington. Br.

43-45; Tillman Am. Br. 3-13. Nor is it compatible with the commercial practices of

more recent Presidents. Br. 45-46. Plaintiffs’ attempts (at 35-40) to rebut this history

fall short for the many reasons that have been extensively briefed. Notably, Plaintiffs’

counterexamples all involve acceptance of “presents,” which the Foreign Emoluments

Clause independently prohibits absent consent of Congress. Br. 36-37.

More fundamentally, Plaintiffs misunderstand who bears the burden on this issue

and why. In Plaintiffs’ view (at 39-40), the President must point to a specific instance

where a President engaged in a commercial transaction with a foreign or domestic

government that was then blessed by a legal decision or memorandum interpreting the

Emoluments Clauses. But that misses the point. Nearly every President has (or almost

certainly has) engaged in commercial transactions that would have violated Plaintiffs’

interpretation of the Emoluments Clauses. Yet Plaintiffs point to no evidence that any

of those countless commercial activities were challenged, questioned, or structured in a

way that would lend even a measure of historical support to their novel and expansive

interpretation of the Constitution.


25

Plaintiffs are correct (at 39) that “a singular historical event—even one involving

George Washington—cannot overcome the unified force of the Clauses’ text and other

interpretative indicia.” But that is not the situation this Court confronts. Here, the

constitutional “text and interpretative indicia” contradict Plaintiffs’ interpretation of the

Emoluments Clauses; at most, there is some support for each side’s view. The absence

of historical evidence substantiating Plaintiff’s reading therefore counsels in favor of

modesty. No court—before the decision below—had ever understood the Constitution

to enjoin the President from engaging in ordinary commerce of this kind. This Court

should not endorse such a sweeping and ahistorical interpretation of the Emoluments

Clauses.

CONCLUSION The claims against the President in his individual capacity should be dismissed

with prejudice.


26

Patrick Strawbridge CONSOVOY MCCARTHY PARK PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 [email protected] February 21, 2019

Respectfully submitted, /s/ William S. Consovoy wsc William S. Consovoy Thomas R. McCarthy Bryan K. Weir Cameron T. Norris CONSOVOY MCCARTHY PARK PLLC 3033 Wilson Blvd., Suite 700 Arlington, VA 22201 (703) 243-9423 [email protected] [email protected] [email protected] [email protected] Counsel for Defendant-Appellant in his individual capacity


CERTIFICATE OF COMPLIANCE

This brief complies with type-volume limits because it contains 6,485 words,

excluding the parts exempted by Rule 32(f). This brief complies with the typeface and

typestyle requirements because it was prepared in a proportionally spaced typeface using

Microsoft Word in 14-point Garamond.

/s/ William S. Consovoy .


CERTIFICATE OF SERVICE

I certify that on February 21, 2019, this document was served on all parties or

their counsel of record through the CM/ECF system.

/s/ William S. Consovoy .


in the united states court of appeals for the …...no. 18-2488 in the united states court of...

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